RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 253 ]
Administration of the Uniform Environmental Covenants Act
[40 Pa.B. 6654]
[Saturday, November 20, 2010]The Environmental Quality Board (Board) adopts Chapter 253 (relating to administration of the Uniform Environmental Covenants Act) to read as set forth in Annex A. The final-form rulemaking addresses ambiguities in 27 Pa.C.S. §§ 6501—6517 (relating to Uniform Environmental Covenants Act) (UECA) and establishes procedural interfaces with other statutes.
This order was adopted by the Board at its meeting of August 30, 2010.
A. Effective Date
This final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Troy Conrad, Director, Land Recycling Program, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 783-7816; or Kurt Klapkowski, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) web site at www.depweb.state.pa.us.
C. Statutory Authority
The final-form rulemaking is being made under section 6515 of UECA (relating to Environmental Quality Board), which grants the Board the power and the duty to promulgate regulations for the proper performance of the work of the Department under UECA; and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the Board to formulate, adopt and promulgate rules and regulations that are necessary for the proper work of the Department. Section 6515 of UECA also explicitly grants the Board the power to develop fees by regulation for environmental covenants.
D. Background and Purpose
UECA was signed into law on December 18, 2007. The statute was based on a National model act developed by the National Conference of Commissioners on Uniform State Laws. UECA provides for the creation of environmental covenants to ensure the long-term stewardship of activity and use limitations on property remediated under the Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P. S. §§ 6026.101—6026.907) or the Storage Tank and Spill Prevention Act (Tank Act) (35 P. S. §§ 6021.101—6021.2103). These limitations are restrictions on the use of the remediated property (institutional controls) or the maintenance of a ''structure'' needed to control the movement of regulated substances through the environment (engineering controls). The environmental covenant is a property interest with a holder and is capable of being transferred and may be enforced by multiple parties, including the Department. Finally, the environmental covenant is recorded with the county recorder of deeds where the property is located, giving future landowners and developers notice of the activity and use limitations. Once the Department develops a formal registry containing all covenants, as required by section 6512 of UECA (relating to registry; substitute notice), only a simple notice will need to be recorded with the county recorder of deeds where the property is located.
Although UECA does contain relatively detailed procedural requirements, the Department determined that regulations under UECA would be necessary to address ambiguities and to establish procedural interfaces with the Tank Act and Act 2. Collection of the fee will support the Department's review of environmental covenants and the development and maintenance of the electronic registry of environmental covenants that section 6512 of UECA requires the Department to develop and maintain.
UECA does not require review of proposed regulations by a particular advisory committee. However, the Department had discussions with several outside groups concerning the proposed rulemaking. The Department presented the proposed rulemaking to the Cleanup Standards Scientific Advisory Board (CSSAB). The proposed rulemaking was discussed and supported at the CSSAB board meeting held on September 1, 2009; a formal motion supporting the proposed rulemaking was not considered due to a lack of a quorum at the meeting. The proposed rulemaking was also discussed with the Storage Tank Advisory Committee (STAC) on September 8, 2009. The STAC did not take formal action on the proposed rulemaking at that meeting.
The proposed rulemaking was published at 40 Pa.B. 1379 (March 6, 2010) with a 30-day public comment period. The Board received 66 comments from 11 commentators, including the Independent Regulatory Review Commission (IRRC). The Department presented the draft final-form rulemaking to the STAC on June 8, 2010, in substantially the same form as published. The STAC approved a motion to recommend approval of the final-form rulemaking by the Board. The Department also presented the draft final-form rulemaking to the CSSAB on June 15, 2010. The CSSAB was supportive of the draft final-form rulemaking but did not take formal action on the rulemaking, pending resolution of several issues. The Department had further discussions with the CSSAB on June 28, 2010, resulting in this final-form rulemaking.
E. Summary of Comments and Responses on the Proposed Rulemaking and Changes to the Proposed Rulemaking
As previously noted, the final-form rulemaking is intended to supplement UECA and tie it together with the Commonwealth's existing risk-based corrective action programs. The Department developed the final-form rulemaking to provide the regulated community and program staff a straightforward step-by-step outline of when environmental covenants are required to be used, how they are created, what they must contain and when they must be submitted to the Department. While there is some overlap with UECA when necessary, the Department did not include those portions of UECA that were clear in UECA and did not pertain to the process for creating and implementing an environmental covenant. These items include enforcement of the environmental covenant and the various parts of UECA outlining the legal effect of creating an environmental covenant.
The contents of the final-form rulemaking are discussed as follows, with special attention to provisions that were amended between the proposed rulemaking and final-form rulemaking.
§ 253.1. Definitions.
For ease of understanding, the definitions from UECA are included in this section. Several definitions not in UECA are included in this section, including ''final report,'' ''instrument,'' ''political subdivision,'' ''Remedial Action Completion Report,'' ''Storage Tank Act'' and ''UECA.'' Several of these definitions were amended in minor ways in response to comments.
Several definitions were added to the final-form rulemaking at the suggestion of commentators. These definitions include ''eminent domain proceeding'' and ''regulated substance.''
§ 253.2. Contents and form of environmental covenant.
This section describes what must be included in an environmental covenant and what may be included as appropriate; it follows section 6504 of UECA (relating to contents of environmental covenant). Subsection (c) affirms that the Department may require the permitted information from subsection (b) or other conditions appropriate to the remediation. Subsection (e) makes it clear that the Department's model covenant may be used, although the Department will accept alternative language in the appropriate case. The model covenant is an evolving document drafted with a significant amount of input from the regulated community. Finally, subsection (f) allows for the special situation when an environmental covenant covers commonly owned property in a common interest community.
Most of the revisions to this section of the final-form rulemaking were minor points of clarification or consolidation. For example, subsection (d) of the proposed rulemaking addressed limitations on the Department's ability to require conditions for approval; that subsection was deleted and the substance of the subsection added to subsection (c)(1) of the final-form rulemaking. In addition, the final-form rulemaking contains language in subsection (c)(6) tracking the language in UECA making the Department's decision to approve or disapprove an environmental covenant appealable to the Environmental Hearing Board.
The final-form rulemaking adds subsection (a)(8). Paragraph (8) will be a mandatory component of all environmental covenants. Paragraph (8) addresses concerns expressed by the Department of Transportation concerning termination of environmental covenants when property is taken for use as a highway right-of-way in an eminent domain proceeding.
§ 253.3. Notice of environmental covenant.
This section describes who is to receive notice of the environmental covenant and when. It tracks section 6507 of UECA (relating to notice). Subsection (c) allows for waivers of required notice and establishes a procedure for persons interested in receiving a waiver.
Several changes were made to this section in the final-form rulemaking to address comments. First, the time for provision of file-stamped copies of the covenant to parties is extended to 90 days from filing (an increase from 60 days) and language allowing the Department to extend that time frame was added. Second, subsection (a)(4) was added to allow the board of a common interest community to receive the required copy on behalf of the community. Sites cleaned up to the nonresidential Statewide health standard and requiring an activity and use limitation to demonstrate attainment or maintenance of the standard will be required to comply with UECA.
§ 253.4. Requirements for and waiver of environmental covenants.
This section outlines when environmental covenants are required as well as the procedures for the Department's waiver of the requirement for an environmental covenant. The basic requirement for use of an environmental covenant is in section 6517(a) of UECA (relating to relationship to other laws).
Several changes were made to this section in response to comments. As discussed in more detail regarding § 253.5 (relating to submission of environmental covenants and related information), the final-form rulemaking does not require submission of draft environmental covenants and only requires submission of requests for waivers at the time the remediator submits the Final Report or Remedial Action Completion Report to the Department. As a result, all references to submission of draft environmental covenants or submission of environmental covenants at earlier stages in the process have been eliminated from this section. This includes deletion of references to the various Act 2 standards and deletion of proposed subsection (d). Subsection (c) of the final-form rulemaking establishes requirements relating to the process for and timing of submission of requests for Department waiver of the requirement to use environmental covenants in cleanups under Chapters 245 and 250 (relating to administration of the storage tank and spill prevention program; and administration of land recycling program).
Subsection (b) clarifies that when activity and use limitations are to be used in special industrial area cleanups under section 305 of Act 2 (35 P. S. § 6026.305), they are to be in the form of an environmental covenant.
Subsection (d) relates to section 6517(a)(3) of UECA. Section 6517(a)(3) of UECA establishes special provisions regarding the use of environmental covenants at Federally-owned property. Subsection (e) makes it clear that the requirement to use environmental covenants at these properties is not waived by UECA but delayed until the property is transferred out of Federal government control. Until the time of transfer, the activity and use limitations must be memorialized in an installation's master plan or similar remedial documentation. It also requires notification of the Department in the event of transfer.
§ 253.5. Submission of environmental covenants and related information.
This is an important section because it addresses ambiguities in UECA in terms of establishing procedural interfaces between UECA and existing remedial action programs in this Commonwealth. This section establishes the time frames for submission of draft and final signed environmental covenants to the Department. This section was also one of the most commented upon in the proposed rulemaking and several major changes have been made to this section.
Several commentators raised concerns regarding the deadlines for submission of draft and final signed environmental covenants. As a result, the submission process has been overhauled in the final-form rulemaking. The first major change to this section relates to submission of draft environmental covenants prior to the Final Report/Remedial Action Completion Report stage of the remediation process. The final-form rulemaking completely eliminates the requirement to submit draft environmental covenants to the Department for review. Instead, the final-form rulemaking requires the remediator to provide the environmental covenant no later than 30 days after receipt from the Department of written approval for the Final Report or Remedial Action Completion Report. The Department believes that most if not all issues regarding the activity and use limitations required to attain or maintain an Act 2 standard will be worked out as part of the review and approval of the reports. The environmental covenant will reflect the requirements in those reports and should be relatively straightforward to prepare and submit.
As a result of this change, references to various Act 2 standards in proposed subsections (a) and (b) have been deleted, along with language requiring submission of draft reports. Proposed subsection (b) was deleted and proposed subsection (c) was amended and renumbered as subsection (b). That subsection addresses submission to the Department of information regarding persons who shall be given notice of the environmental covenant (§ 253.3 (relating to notice of environmental covenant)). It is also necessary so the Department can determine if subordination should be required (§ 253.8 (relating to subordination)) as holders of prior interests are not subject to the environmental covenant under UECA unless they agree to subordinate their interest to the covenant (see section 6503(d) of UECA (relating to nature of rights; subordination of interests)). Given the changes to the submission process, proposed subsection (d) was no longer necessary and was deleted. Finally, proposed subsection (e) addressed recording the signed covenant and the time frame for providing the Department with proof of recordation. This subsection is retained in the final-form rulemaking and renumbered as subsection (c). In response to concerns raised by commentators, the final-form rulemaking increases the time available to provide the Department with proof of recordation from 60 to 90 days after approval of the covenant by the Department and allows for the Department to agree to extensions if needed.
§ 253.6. Requirements for county recorder of deeds.
The proposed section contained two provisions regarding the recordation of environmental covenants with a county recorder of deeds. Subsection (a) required the recorder of deeds to provide proof of recordation in a timely manner and subsection (b) made it clear that environmental covenants, as negative restrictions, generally have no or negative value and so should not be routinely subject to the Pennsylvania Realty Transfer Tax. In response to comments, the final-form rulemaking deletes subsection (b) as issues regarding the Pennsylvania Realty Transfer Tax are better addressed elsewhere.
§ 253.7. Fees.
This section of the final-form rulemaking establishes fees for the review of environmental covenants by the Department. This section also contains an exemption to pay a fee for environmental covenants submitted to convert a prior instrument where the person submitting the environmental covenant did not cause or contribute to the contamination described in the environmental covenant. Finally, subsection (c) requires the Department to review the fee at least every 3 years and report to the Board as to whether the fee continues to meet the Department's cost of administering the program.
Only one significant change was made to this section. The amount of the fee was increased from $350 per environmental covenant submitted to $500 per covenant. Upon review of the program and associated costs, the Department realized that the higher fee would be necessary to cover the costs of administering the program established by UECA.
§ 253.8. Subordination.
This section tracks UECA language regarding subordination and is included for reference. Several commentators raised issues concerning the Department's exercise of discretion to require subordination. As a result, subsection (b) of the final-form rulemaking requires the Department to provide a basis for requiring subordination should the Department reach that conclusion. The Department does not anticipate frequent requests for subordination and if the need should arise, will work together with the parties involved to try to ensure an amicable resolution to the issue.
Subsection (c) of the final-form rulemaking was amended to delete the requirement that proof of recordation of a subordination agreement be provided to the Department, to allow for extension of time to provide the subordination agreement and to address situations involving common interest communities.
§ 253.9. Duration.
In two situations, an environmental covenant can be terminated through action outside of the specific terms of the covenant: eminent domain; and judicial termination. In both instances, a Department determination is required for the termination to occur. This section establishes a process for requesting Department action in an appropriate proceeding. Minor editorial changes were made to this section of the final-form rulemaking.
§ 253.10. Conversion and waiver of conversion.
For persons researching activity and use limitations at properties in this Commonwealth to have a clear understanding of the complete universe of properties with activity and use limitations, section 6517(b) of UECA requires an instrument that establishes activity and use limitations under Act 2 or the Tank Act created prior to February 2008 to be converted to an environmental covenant by February 2013. By converting these prior instruments to covenants and including them in the Department's registry, the limitations will have the legal protection afforded by UECA and be readily available and transparent to property developers with a minimum of effort on their part. The term ''instrument'' is defined in § 253.1 (relating to definitions) as a ''deed restriction, restrictive covenant or other similar document that imposes activity or use limitations filed with a recorder of deeds.''
The Department is conducting an internal review to identify all sites and anticipates targeted outreach to owners of property identified as being subject to a prior ''instrument.''
The final-form rulemaking establishes requirements regarding this conversion requirement and provides a temporal waiver for a certain class of prior instruments. Subsection (b) requires the current property owner to convert the prior instrument and states that the Department will not require, but may allow, the new environmental covenant to contain activity and use limitations not contained in either the existing instrument or a ''Department-approved postremediation care plan.''
Subsection (c) of the final-form rulemaking contains the conditional temporal waiver previously noted. This subsection waives the requirement to convert the prior ''instrument'' until the current property owner transfers the property, so long as the owner requests the waiver and provides the Department with proof that the prior instrument was recorded with the recorder of deeds in the county where the property is located. Based on comments, subsection (d) of the proposed rulemaking was judged to be duplicative of subsection (c) and therefore subsection (d) is deleted in the final-form rulemaking.
Finally, subsection (d) notes that the Department may waive the requirement to convert a prior instrument outright, and that such a waiver will be issued in writing.
§ 253.11. Assignment of interest.
Section 6510 of UECA (relating to amendment or termination by consent) requires the Department to consent to several categories of changes regarding the holder, or grantor, of the environmental covenant. This section outlines the requirements applicable to a request for consent.
F. Benefits, Costs and Compliance Benefits
The final-form rulemaking will assist the Department and the regulated community in implementing UECA and serve the dual purpose of enhancing the protection of human health and the environment, while promoting the safe reuse of contaminated brownfields sites. Brownfield redevelopment in this Commonwealth has been successful largely because regulators, property owners and communities have accepted that contamination can be left in place with the proper activity and use limitations to allow redevelopment—without presenting significant risk to human health or the environment.
The final-form rulemaking provides better legal tools to ensure that future generations understand the reasons why activity and use limitations have been imposed and why certain long-term maintenance/monitoring might be needed. Regulators and the community can have confidence that environmental activity and use limitations will be enforced in perpetuity. The final-form rulemaking allows all parties to have a clear understanding of how UECA will be implemented going forward.
Compliance Costs
The Department does not anticipate any increased costs to the regulated community as a result of the final-form rulemaking, except for the fee in § 253.7 (relating to fees). The activity and use limitations are necessary to demonstrate attainment or maintenance of an Act 2 standard; the final-form rulemaking does not expand the use of these limitations. The obligation to use environmental covenants to implement those activity and use limitations is established by UECA and not these regulations.
Based on historical data developed in administering the UECA program since February 2008 (the effective date of UECA), the Department projects that approximately 165 environmental covenants will be submitted for review and approval annually. Therefore, the fees collected under the regulation are projected to be around $82,500 per year.
Compliance Assistance Plan
It is not anticipated that the Commonwealth will provide sources of financial assistance to aid in compliance with this final-form rulemaking. As noted in section E, the Department will target outreach to property owners whose properties are identified as being subject to the conversion requirement in section 6517(b) of UECA. Finally, the Department developed a model environmental covenant and will develop policies, guidance and factsheets as needed to explain particular aspects of how implementation of UECA fits in with other parts of the remediation process.
Paperwork Requirements
The final-form rulemaking does not establish new paperwork requirements. Submission of the various documents is required by UECA. The final-form rulemaking merely formalizes the manner and timing of those submissions along with the Department's responses.
G. Pollution Prevention
This final-form rulemaking relates to pollution that has already been released into the environment. The use of environmental covenants should ensure long-term stewardship of activity and use limitations, however, helping to ensure that existing problems do not get worse through inattention or further spread of pollution through the environment. The final-form rulemaking does not directly promote a multimedia pollution prevention approach.
H. Sunset Review
This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended. Section 253.7(c) obligates the Department to evaluate whether or not the current fee covers the expenses associated with the program and report to the Board the results of that evaluation at least every 3 years.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 24, 2010, the Department submitted a copy of the notice of proposed rulemaking, published at 40 Pa.B. 1379, to IRRC and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on October 20, 2010, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 21, 2010, and approved the final-form rulemaking.
J. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 40 Pa.B. 1379.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this preamble.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code, are amended by adding §§ 253.1—253.11 to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately.
JOHN HANGER,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 6487 (November 6, 2010).)
Fiscal Note: Fiscal Note 7-454 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VI. GENERAL HEALTH AND SAFETY
CHAPTER 253. ADMINISTRATION OF THE UNIFORM ENVIRONMENTAL COVENANTS ACT Sec.
253.1. Definitions. 253.2. Contents and form of environmental covenant. 253.3. Notice of environmental covenant. 253.4. Requirements for and waiver of environmental covenants. 253.5. Submission of environmental covenants and related information. 253.6. Requirements for county recorder of deeds. 253.7. Fees. 253.8. Subordination. 253.9. Duration. 253.10. Conversion and waiver of conversion. 253.11. Assignment of Interest. § 253.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Activity and use limitations—
(i) Restrictions or obligations with respect to real property created under this chapter.
(ii) The term includes engineering controls and institutional controls.
Agency—Any of the following:
(i) The Department.
(ii) A Federal agency which determines or approves an environmental response project pursuant to which the environmental covenant is created.
Common interest community—A condominium, cooperative or other real property, with respect to which a person, by virtue of ownership of a parcel of real property or of ownership of an interest in real property, is obligated to pay for property taxes, insurance premiums, maintenance or improvement of other real property described in a recorded covenant which creates the common interest community.
Eminent domain proceeding—An acquisition of property by an entity acting with the power of eminent domain, whether by condemnation or in lieu of condemnation.
Engineering controls—
(i) Remedial actions directed exclusively toward containing or controlling the migration of regulated substances through the environment.
(ii) The term includes slurry walls, liner systems, caps, leachate collection systems and groundwater recovery trenches.
Environmental covenant—A servitude arising under an environmental response project which imposes activity and use limitations under UECA.
Environmental response project—A plan or work performed for environmental remediation of real property conducted under one of the following:
(i) A Federal program governing environmental remediation of real property.
(ii) A Commonwealth program governing environmental remediation of real property.
(iii) Incident to closure of a solid or hazardous waste management unit if the closure is conducted with approval of an agency.
(iv) A Commonwealth voluntary cleanup program authorized by statute.
Final report—A report filed with the Department by a remediator documenting attainment of one or a combination of cleanup standards under the Land Recycling Act under § 250.204, § 250.312 or § 250.411 (relating to final report).
Holder—A person that is the grantee of an environmental covenant as specified in section 6503(a) of UECA (relating to nature of rights; subordination of interests).
Institutional controls—
(i) Measures undertaken to limit or prohibit certain activities which may interfere with the integrity of a remedial action or result in exposure to regulated substances at a site.
(ii) The term includes fencing and restrictions on the future use of the site.
Instrument—A deed restriction, restrictive covenant or other similar document that imposes activity or use limitations filed with a recorder of deeds.
Land Recycling Act—The Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.101—6026.908).
Person—
(i) Any individual, corporation, partnership, association or other entity recognized by law as the subject of rights, duties or obligations.
(ii) The term includes the United States of America, a Federal agency, the Commonwealth, an agency or instrumentality of this Commonwealth and a political subdivision.
Political subdivision—Any county, city, borough, township, or incorporated town.
Record—Information which is:
(i) Inscribed on a tangible medium or stored in an electronic or other medium.
(ii) Retrievable in perceivable form.
Regulated substance—The term has the same meaning given to it in section 103 of the Land Recycling Act (35 P. S. § 6026.103).
Remedial Action Completion Report—A corrective action report filed with the Department by a remediator documenting attainment of one or a combination of cleanup standards under the Land Recycling Act pursuant to the Storage Tank Act under either § 245.310(b) or § 245.313 (relating to site characterization report; and remedial action completion report).
Storage Tank Act—The Storage Tank and Spill Prevention Act (35 P. S. §§ 6021.101—6021.2104).
UECA—The Uniform Environmental Covenants Act (27 Pa.C.S. §§ 6501—6517).
§ 253.2. Contents and form of environmental covenant.
(a) An environmental covenant must contain the following:
(1) A statement that the instrument is an environmental covenant executed under UECA.
(2) A legally sufficient description of the real property subject to the environmental covenant.
(3) A brief narrative description of the contamination and the remedy.
(4) A description of the activity and use limitations on the real property.
(5) An identification of every holder.
(6) The signatures, with the formalities required for a deed, by the following:
(i) The agency, unless the environmental covenant has been deemed approved under subsection (c)(4).
(ii) Every holder.
(iii) Every owner in fee simple of the real property subject to the environmental covenant, unless waived by the agency.
(7) The name and location of any administrative record for the environmental response project reflected in the environmental covenant.
(8) A clause that the covenant may be amended or terminated as to any portion of the real property subject to the covenant that is acquired for use as highway right of way by the Commonwealth, providing that:
(i) The Department waives the requirements for an environmental covenant and for conversion under section 6517 of UECA (relating to relationship to other laws) to the same extent that the environmental covenant is amended or terminated.
(ii) The Department determines that termination or modification of the environmental covenant will not adversely affect human health or the environment.
(iii) The Department will provide 30-days advance written notice to the current property owner, each holder, and, as practicable, each person that originally signed the environmental covenant or successors in interest to those persons.
(b) An environmental covenant may contain other information, restrictions and requirements agreed to by the persons who signed it, including the following:
(1) The requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for or proposals for any site work affecting the contamination on the property subject to the environmental covenant.
(2) The requirements for periodic reporting describing compliance with the environmental covenant.
(3) The rights of access to the property granted in connection with implementation or enforcement of the environmental covenant.
(4) The restrictions or limitations on amendment or termination of the environmental covenant in addition to those contained in sections 6509 and 6510 of UECA (relating to duration; and amendment or termination by consent).
(5) The rights of the holder in addition to its right to enforce the environmental covenant under section 6511 of UECA (relating to enforcement of environmental covenant).
(6) A detailed narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure and the location and extent of the contamination.
(7) Limitations on the duration of the environmental covenant.
(c) Agency review will be as follows:
(1) Prior to signing an environmental covenant, an agency may review the covenant and provide its conditions for approval, including subordination under § 253.8 (relating to subordination), if the conditions are applicable to the implementation of a remedy (including any postremediation care plan that is part of the remediation).
(2) In addition to other conditions for its approval of an environmental covenant, an agency may require those persons specified by the agency that have interests in the real property to sign the covenant.
(3) Except as set forth in paragraph (4), signature by an agency on an environmental covenant constitutes its approval of the environmental covenant. Disapprovals of an environmental covenant by the Department will be made in writing to the person submitting the environmental covenant and will describe the basis for the disapproval.
(4) Failure of the Department to approve or disapprove an environmental covenant within 90 days of receipt of all information reasonably required by the Department to make a determination shall be deemed an approval of the environmental covenant, unless the Department and the remediator agree to an extension of time.
(5) The date the Department receives an environmental covenant for review and the information reasonably required by the Department to make a determination concerning the approval or disapproval of the environmental covenant, shall be the date of receipt under section 6504(c)(4) of UECA (relating to contents of environmental covenant) and for purposes of this chapter.
(6) The Department's decision to approve or not approve an environmental covenant is appealable to the EHB.
(d) An environmental covenant may be in the form of the Model Covenant posted on the Department's web site or may be in any other form acceptable to the agency.
(e) If the environmental covenant covers commonly owned property in a common interest community, the covenant may be signed by any person authorized by the governing board of the owners association.
§ 253.3. Notice of environmental covenant.
(a) The environmental covenant must indicate to whom copies are to be provided, when those copies are to be provided and by whom the copies are to be provided. A grantor, a holder or any person who signed the environmental covenant may be designated as the individual responsible for distributing copies of the environmental covenant. File-stamped copies shall be provided no later than 90 days after the recording of the environmental covenant by the county recorder of deeds, unless the Department agrees to an extension of time.
(b) Unless waived by the Department in writing, copies of the environmental covenant shall be provided to the following persons:
(1) Each person who signed the environmental covenant.
(2) Each person holding a recorded interest in that portion of the real property subject to the environmental covenant.
(3) Each person in possession of that property.
(4) If the environmental covenant covers commonly owned property in a common interest community, the copies of the environmental covenant may be provided to any person authorized by the governing board of the owners association.
(5) Each political subdivision in which that property is located.
(6) Other persons designated by the agency, based upon the rights or interests that the other persons have in receiving a copy of the environmental covenant.
(c) A person submitting an environmental covenant to an agency may request waiver of the requirement that copies of the environmental covenant be provided. The request must be in writing and include the reasons for the requested waiver.
§ 253.4. Requirements for and waiver of environmental covenants.
(a) Unless waived by the Department, activity and use limitations used to demonstrate or maintain attainment of a remediation standard under the Land Recycling Act or the Storage Tank Act must be in the form of an environmental covenant. An environmental covenant may be used with other types of environmental response projects.
(b) Remediation measures undertaken pursuant to the special industrial area provisions of the Land Recycling Act which include land use restrictions limiting use of the property to the intended purpose shall implement those land use restrictions in the form of an environmental covenant.
(c) For remediations that require an environmental covenant under subsection (a), requests and justifications for waivers from the requirement to develop and record an environmental covenant shall be submitted to the Department in writing no later than at the time of submission of the Remedial Action Completion Report or the Final Report. Any waivers that are granted by the Department will be issued in writing.
(d) An environmental covenant will not be required, but may be used, for property owned by the Federal government before transfer of the property to a non-Federal entity or individual. At least 120 days before the transfer of a property owned by the Federal government, at which engineering or institutional controls are used to demonstrate or maintain attainment of a remediation standard under the Land Recycling Act or the Storage Tank Act, the Department shall be notified of the proposed transfer of the property and be provided with a draft environmental covenant. The requirement for providing notice and a draft environmental covenant to the Department shall be incorporated into an installation's master plan or other similar and appropriate remedial documentation.
§ 253.5. Submission of environmental covenants and related information.
(a) For remediations that require an environmental covenant under § 253.4 (relating to requirements for and waiver of environmental covenants), the remediator shall provide the environmental covenant to the Department no later than 30 days after receipt of written approval from the Department of the Remedial Action Completion Report or the Final Report.
(b) For remediations that require an environmental covenant under § 253.4, the person who submits the environmental covenant to the agency shall provide the agency with the name and current address of each person occupying or otherwise in possession of the real property subject to the environmental covenant and each person owning a recorded interest in that property. If the environmental covenant covers commonly owned property in a common interest community, only the person as is authorized by the governing board of the owners association to receive the covenant needs to be included under this subsection. The information shall be provided no later than when the Remedial Action Completion Report or the Final Report is submitted to the agency.
(c) Within 90 days after the environmental covenant has been approved and signed by the Department, the person who submitted the environmental covenant shall provide the Department with proof of recordation of either the approved environmental covenant or the substitute notice allowed under section 6512(b) of UECA (relating to registry; substitute notice), unless the Department agrees to an extension of time.
§ 253.6. Requirements for county recorder of deeds.
Within 45 days after the filing of an environmental covenant, or the substitute notice allowed under section 6512 of UECA (relating to registry; substitute notice), with a county recorder of deeds, the recorder of deeds shall provide the person who filed the document with a copy of the recorded document which indicates where the recorder has indexed the document.
§ 253.7. Fees.
(a) A nonrefundable fee of $500 shall be submitted to the Department with each environmental covenant appropriately signed by all parties other than the Department.
(b) A fee is not required for environmental covenants submitted under § 253.10 (relating to conversion and waiver of conversion) where the person submitting the environmental covenant did not cause or contribute to the contamination described in the environmental covenant.
(c) At least every 3 years, the Department will provide the EQB with an evaluation of the fees in this chapter and recommend regulatory changes to the EQB to address any disparity between the program income generated by the fees and the Department's cost of administering the program with the objective of ensuring fees meet all program costs and programs are self-sustaining.
§ 253.8. Subordination.
(a) As a condition of approving an environmental covenant, the Department may require that an owner of a prior interest subordinate its interest to the environmental covenant.
(b) If the Department requires subordination of a prior interest to the environmental covenant, it will notify the person submitting the environmental covenant and the owner of the prior interest of this condition in writing and describe the basis for requiring subordination.
(c) A subordination agreement may be contained in the environmental covenant or in a separate record. If contained in a separate record, a copy of the subordination document shall be provided to the Department prior to approval of the environmental covenant, unless the Department agrees to an extension of time. If the environmental covenant covers commonly owned property in a common interest community, the agreement or record may be signed by any person authorized by the governing board of the owners association.
(d) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of the person's interest but does not itself impose an affirmative obligation on the person with respect to the environmental covenant nor does it affect the person's existing environmental liabilities.
§ 253.9. Duration.
(a) Duration of covenant. An environmental covenant is perpetual except as provided under section 6509 of UECA (relating to duration).
(b) Eminent domain. When the Department is the agency referenced in section 6509(a)(5) of UECA, notice and request for consent must be made in writing and submitted to the Department at least 30 days prior to commencement of the eminent domain proceeding.
(c) Judicial termination or amendment. Where the Department is the agency referenced in section 6509(b) of UECA, the notice and request for determination must be made in writing and submitted to the Department at least 90 days prior to commencement of the judicial proceeding.
§ 253.10. Conversion and waiver of conversion.
(a) An instrument created before February 18, 2008, which establishes activity and use limitations to demonstrate attainment or maintenance of one or a combination of cleanup standards under the Land Recycling Act or to demonstrate satisfaction of a corrective action requirement under the Storage Tank Act shall be converted to an environmental covenant by February 18, 2013, unless waived by the Department or as otherwise provided in this section.
(b) The current owner of a property subject to an instrument covered in subsection (a) shall have the responsibility to convert the existing instrument to an environmental covenant in accordance with the requirements of UECA and this chapter. The Department will not require, but may allow, such an environmental covenant to contain information, restrictions or requirements, including activity and use limitations, not contained in the existing instrument or a Department-approved postremediation care plan.
(c) The obligation to convert an instrument covered in subsection (a) shall be waived until the property is transferred to a new owner if the current owner of the property requests the waiver in writing and provides the Department with proof of recordation of the instrument covered by subsection (a).
(d) The Department may waive the requirement to convert an instrument. Waivers that are granted by the Department will be issued in writing.
§ 253.11. Assignment of interest.
When the Department's consent is required for a holder to assign its interest, or for the removal and replacement of a holder, request for the consent must be made in writing and submitted to the Department at least 30 days prior to the assignment, unless waived by the Department.
[Pa.B. Doc. No. 10-2191. Filed for public inspection November 19, 2010, 9:00 a.m.]
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